[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1293

FEDERAL LABOR RELATIONS AUTHORITY,

Petitioner,

v.

PUERTO RICO NATIONAL GUARD, ETC.,

Respondent.

PETITION FOR ENFORCEMENT OF A FINAL ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

James F. Blandford, Attorney, with whom David M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor, were on brief, for petitioner. Howard S. Scher, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and William Kanter, Attorney, Appellate Staff, were on brief, for respondent. May 25, 2000 Per Curiam. This proceeding began when the American

Federation of Government Employees, Local 3936 (the union) filed

an unfair labor practice charge against the respondent under

(a)(1), (5). In substance, the union accused the

respondent of reneging on a memorandum of understanding that

contemplated the inauguration of a flex-time work schedule, at

least for a six-month trial period. An administrative law judge

(ALJ) determined that the respondent had repudiated the

agreement without cause and had thereby violated the statute.

The respondent took no exceptions to this determination.

Consequently, the Federal Labor Relations Authority (the

Authority), acting pursuant to

(a), accepted

the ALJ's recommendation and issued a final decision and order

on May 15, 1998.

Several months went by, during which the respondent

ignored the remedial order. When pressed, it claimed that

changed circumstances rendered compliance impossible (or, at

least, impracticable). Unmoved, the Authority repaired to this

court, seeking enforcement of the order. On the eve of oral

argument, however, the respondent began filing a series of

motions indicating that circumstances again had changed (this

time for the better), and that it was now willing and able to

comply with the Authority's remedial order. The respondent

-3- suggested, on the basis of this assurance, that we dismiss the

petition as moot. The Authority objected.

We heard oral argument on May 8, 2000. The respondent

urged us to decline enforcement as unnecessary and to dismiss

the petition as moot. The Authority, citing the long delay and

the tortuous history of the proposed flex-time experiment,

implored us to enforce the order.

We grant the petition for enforcement. In doing so,

we take no view of the merits of the respondent's impossibility

defense. Assuming, arguendo, as the respondent has asserted,

that altered circumstances rendered implementation of the

remedial order impossible for some period of time, the

respondent nonetheless concedes that the circumstances have

changed again and that no impediment now exists to compliance

with the terms of the remedial order. That being so, we believe

that the Authority is entitled to an enforcement decree. Cf.

NLRB v. Raytheon Co.,

(1970); NLRB v. Pearl

Bookbinding Co.,

(1st Cir. 1975). Although

we do not doubt that courts have a modicum of discretion to

withhold enforcement of orders like the order sub judice in the

interests, say, of permitting voluntary compliance, we see no

reason to invoke that seldom-used discretion here. The

Authority has satisfied all of the prerequisites for judicial

-4- enforcement, and the entry of an enforcement decree will not

unfairly prejudice the respondent. Rather, judicial enforcement

will serve as an effective reminder to the respondent of its

continuing obligation fully and seasonably to effectuate the

terms of the Authority's remedial order.

The application for enforcement is GRANTED and the

Authority's order is ENFORCED.

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